Miami Springs Properties, Inc., 278 (1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Miami Springs Properties, Inc. and James H. Kinley and Associates, Joint Employers andKenneth Wade Salyer; Joe Salyer; Cleveland Bailey; O'Banion Ritchie; United Mine Workers of America.' Cases 9-CA-9276-1, 9-CA-9276-2, 9-CA-9276 3, 9

CA-9276-4, 9-CA-9276-5, and 9-CA-9368

September 25, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS MURPHY

AND TRUESDALE

On April 12, 1978, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, the United Mine Workers of America, herein called the Union, filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a supporting brief. Respondents then filed an answering brief to the Union's exceptions and the General Counsel's limited crossexceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge 4 as modified below.5

The General Counsel's exception to the case caption as set forth in the Administrative Law Judge's Decision is sustained and the caption is modified to include the appropriate corrections.

2Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (19501, enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally without merit Respondents' allegations of bias and prejudice on the part of the Administrative Law Judge, since we do not perceive any evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated a bias against Respondents in his analysis or discussion of the evidence.

The Administrative Law Judge incorrectly designated a number of Respondents' unfair labor practices as violations of Sec. 8(aX3) and (1) of the Act. The violations incorrectly designated include: (I) laying off employees on March 7 and/or 10, 1975, prior to the advent of union activity; (2) threatening to close in the event of unionization; (3) informing employees that they had been laid off because they engaged in protected concerted activity; (4) issuing threats to employees exhibiting sympathy for the Union or engaging in prounion activity; and (5) promising benefits to employees if they rejected the Union. We correct those errors and find that the above-described unfair labor practices violate only Sec. 8(a)(I) of the Act.

4In affirming the Administrative Law Judge's finding that Respondents unlawfully laid off employees on March 7 and/or 10, 1975, we do not adopt or rely on his finding that Respondents' president. Joyce, indicated in his March 11 response to the employees' demands that he was willing to reinThe Administrative Law Judge found Supervisor Pat Montgomery's statement of April 10, 1975, to be no more than predictive personal opinion. The General Counsel excepts to that finding, contending that Montgomery's statement, when examined in the context of Respondent's pervasive and egregious unfair labor practices, constituted an unlawful threat to close in violation of Section 8(a)(l) of the Act. We find merit in the General Counsel's contention.

Employee Horace Grant Thompson testified 6 that Montgomery told him, 'if you guys keep trying to make Jim Joyce sign a union contract, that I feel he will move out of Magoffin County and if he does go ahead and move out that will be a big loss to Magof:fin County. It would be one big job less.' At the time Montgomery made this statement to Thompson, Respondents had already embarked upon an extensive and persistent campaign of threats and reprisals in retaliation for their employees having engaged in protected concerted and prounion activities. As part of this campaign Respondents discharged a large number of employees and even bluntly informed some of these discriminatees that their terminations were the result of their having engaged in protected concerted activities. Other discriminatees were told by Respondent's supervisors that any return to work would be contingent upon the employees' agreement to withhold their support from the Union. Furthermore, Respondents threatened other employees with closure of their coal operations in the event the Union was successful in its organizational effort. When evaluated in this context of unlawful discharges, threats, and reprisals, Montgomery's remarks become but one in a series of thinly veiled warnings to Respondents' employees to halt their efforts to obtain better working conditions and to obtain union representation or face the most severe consequences. Consequently, we find that Montgomery's statement constituted an unlawful state all employees and resume full operations if certain conditions were met.

since it is not supported by the record.

I The General Counsel has excepted to the refusal of the Administrative Law Judge to find that Respondents violated Sec. 8(aXI) by curtailing their operations in order to discourage their employees' protected concerted activities. The Administrative Law Judge indicated that he would have found such a violation had the allegation been included in either of the complaints.

The General Counsel's exception is accompanied by a motion to amend the complaint, in conformance to proof. to add the appropriate allegation. In support of its position, the General Counsel argues that the issue was fully litigated at the hearing and that Rule 15(b) of the Federal Rules of Civil Procedure has eliminated ngid pleading requirements. In response, Respondents contend that to allow the amendment and find the violation would violate due process since it would punish Respondent without either providing them with reasonable notice of the charge or affording them a full opportunity to present a defense to the purported violation. Our view is that Respondents were not fully appraised of the nature of this alleged violation at the hearing and. consequently, the motion to amend is denied. In the view of Chairman Fanning. the allegation that Respondents unlawfully curtailed their operations was fully litigated at the hearing and. accordingly. he would grant the motion to amend and find the violation.

6 Montgomery did not testify at the hearing, and consequently Thompson's account of Montgomery's remarks stands uncontroverted in the record.

24q NI.RR No. 22

278

MIAMI SPRINGS PROPERTIES. INC.

threat to close in violation of Section 8(a)(1) of the Act.7

Notwithstanding the fact that the Union never was able to demonstrate majority support among unit employees, the General Counsel and the Union except to the Administrative Law Judge's failure to grant a bargaining order to remedy Respondent's unfair labor practice violations. In United Dairy FarmersCooperative Association,8 we considered the issue of whether a bargaining order remedy is appropriate in situations where a union has never obtained majority support from unit employees. For the reasons expressed in the majority and concurring opinions in United Dairo, we deny the General Counsel's and Union's request for a bargaining order.9

However, in United Dairy we also recognized that in situations involving serious and pervasive unfair labor practices, our conventional remedies might be inadequate to dissipate effectively the coercive impact created by a respondent's unfair labor practices. Respondents here engaged in extensive unfair labor practices, including many unlawful terminations, numerous threats of closure in the event of unionization, and promises of benefits for the purpose of deterring employees from supporting the Union. In addition,

Respondents have previously been found to have engaged in similar serious violations of the Act.' We conclude that the imposition of extraordinary rem' Intertherm, Inc., 235 NLRB 693 (1978), and Marathon LeTourneau Company. GulfMarine Division ofMarathon Manufacturing Company. 208 NLRB 213 (1974).

'242 NLRB 1026 (1979).9

Chairman Fanning believes that a bargaining order is the only adequate remedy for Respondents' flagrant and pervasive violations of the Act. See his dissenting opinion in United Dairy Farmers Cooperative Association, supra. In view of his colleagues' refusal to implement a bargaining order remedy.

Chairman Fanning agrees with the additional remedial measures applied herein. However, he would also apply the additional extraordinary measures implemented in United Dairy in the instant case. He would require that Respondents' president and owner. James V. Joyce. read acopy of the notice to current employees, assembled for that purpose. This measure is necessary to insure that employees receive adequate assurances that in the future their Sec. 7 nghts will be respected. Here, as in Unrted Dair,, it is clear that Respondents' unlawful campaign emanated from the top, and, accordingly.

any reassurances that this campaign will stop should also come from the top Furthermore, Chairman Fanning would also order that: (I) the Union be given reasonable access to bulletin boards and all places where notices to employees are customarily posted; (2)the Union be given reasonable access to employees in nonwork areas during employees' nonwork time; (3) the Union be given adequate notice of, and equal time and facilities to respond to, any address made by Respondents to their employees on the...

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